Justices say petition signers should not expect their names to be kept secret

By Robert Barnes
Washington Post Staff Writer
Friday, June 25, 2010

Those who sign referendum petitions should generally not expect to keep their names secret, the Supreme Court ruled Thursday, rejecting the argument of an anti-gay-rights group that disclosure would violate their First Amendment protection of political expression.

The court's 8 to 1 decision upholding the state of Washington's public-records law said states have valid reasons to disclose the names, offsetting any chilling effect that might have on a person's decision whether to sign.

Public disclosure "helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures," wrote Chief Justice John G. Roberts Jr. "Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot."

The law had been challenged by those who signed a petition hoping to overturn legislation granting domestic partnerships to same-sex couples. They said gay rights groups had threatened to harass them by posting their names and addresses on the Internet and by urging supporters of the law to confront them.

Roberts's opinion said petition-signers in specific cases, including this one, could try to persuade courts to withhold release of their names if they could show a "reasonable probability" that the disclosure would subject them to harassment, threats or reprisals.

But in a flurry of separate opinions that accompanied the decision, at least five members of the court made clear that such claims may not succeed. And Justice Antonin Scalia said there was no First Amendment protection at all for the challengers.

"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance," Scalia wrote in a separate concurrence. "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."

Justice Clarence Thomas was the lone dissenter. He said the state's decision to disclose the names on all petitions is unconstitutional "because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process."

Thomas was also the only dissenter this year when the court upheld requirements that campaign contributions be disclosed. Campaign finance reform advocates said Thursday's decision bodes well for legislation now moving through Congress that would increase the disclosure requirements for corporate campaign spending.

The case before the court, Doe v. Reed, arose out of a 2009 Washington law that allows gay couples and those older than 65 to register as domestic partners; it was called the "everything but marriage" act. Opponents of the law sought to repeal it and gathered enough signatures to put Referendum 71 on the ballot. Voters upheld the law in November.

During the campaign, groups that supported the law requested the names of those who signed the petition, citing Washington's public records laws. The signers persuaded a federal court to forbid the disclosure, saying it violated their constitutional rights. The Supreme Court, with Justice John Paul Stevens objecting, agreed that the injunction should remain in place while the high court considered the case.

The backdrop to the case was California's Proposition 8. People who donated to the referendum campaign to overturn a state Supreme Court decision legalizing same-sex marriages said they faced harassment, threats and economic recriminations.

Justice Samuel A. Alito Jr., though siding with the majority opinion that petition signers generally cannot expect privacy, was sympathetic to their concerns.

"When speakers are faced with a reasonable probability of harassment or intimidation, the state no longer has any interest in enabling the public to locate and contact supporters of a particular measure," Alito wrote separately. A number of media organizations, including The Washington Post, filed amicus briefs supporting Washington's open-records law.

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